Malcolm Bradsher Co., Inc. v. Deheulle

• Court: Superior Court of Maine
• Decided: August 9, 2005
• Docket: YORre-04-011
• Status: Unpublished

Opinion

SUPERlOR COURT CIVIL ACTION STATE OF MAINE DOCKET NO.RE-04-011

#&"m MALCOLM DSHER CO., INC., Plaintiff A . - .g.d .. .a ,' ORDER AND DECISION

MICHAEL DEHEULLE and IDRRAINE DEHEULLE, Defendants

In November of 2002 the parties entered into a contract where the plaintiff provide a variety of excavation and construction services for the defendants regarding

their property in York. The written agreement had a price of $40,000 but failed to

include many of the mandatory contracbal provisions required by Maine's home

construction contracts statute found at 10 M.R.S.A. §§1486-et seq. It did list the price

and contained a "general description of the work and the to be used", 10 M.R.S.A. §1487(6). Problems developed reasonably quickly once work started. There were disputes

regarding the extent of the work to be done, the qualib of the work, the timeliness of

the work, and the attentiveness of Malcolm Bradsher, who is the president of the

plaintiff excavation and site work company. Disputes existed regarding change orders,

when payments should be made and whether the plaintiff was doing a poor job or whether the defendants were unduly demanding. In time the plaintiff was fired, some

of the remaining work was done by another contractor, and this litigation began.

The plaintiff has filed a four-count complaint and the defendants have brought a

five-count counterclaim. A non-jury hearing has been held. I have now reviewed the

evidence twice on separate days.

The evidence in this case makes it very difficult to determine wl-uch side is

correct and what the damages, if any, should be.

It is difficult to determine exactly what was agreed to initially. The site work

proposal listed types of work and an estimated price but provided few details. The

contract called for "Backfill, including underdrain." There was no indication of how

much fill and of what type of material. There was to be "foundation excavation" but it

became uncertain how much work was included. Likewise there was to be a gravel

driveway but there were no details regarding its construction.

Mr. Deheulle sent a letter of May 8, 2003 to Malcolm Bradsher's foreman, which

stated, "At the time I met with Malcolm, we agreed on a cubic yard amount of fill,

which I believe was an allowance of 600 yards." This letter helped to clarify what the

agreement was but did little to clarify the whole contract.

I cannot with sufficient certainty determine what the scope of the initial contract

was. The evidentiary difficulties increase because there are claimed extras that the

plaintiff alleges were agreed to and done but not paid for. No change order exists to

substantiate this.

The proposal drafted by the plaintiff, which formed their contract, might be

adequate in those cases where everyone gets along. It was completely inadequate in

this case where disputes arose. The problems on this job demonstrate the wisdom of the Maine legislature in requiring, for now nearly 20 years, that contracts be in writing

with mandatory provisions. I am left with substantial uncertainty regarding what was

agreed to and what work was done.

The plaintiff kept poor records. Additionally Mr. Bradsher's changes in his

testimony between his deposition and his trial testimony cast additional doubt on the

reliability of h s recollection. One area that is particularly troubling involves the extent

of clay that was improperly placed over the septic system. The testimony of Mr.

Bradsher on this point was not credible.

Since the plaintiff has not adequately established what was agreed to, what was

done or what is owed it has not met its burden of proving any of its claims by a

preponderance of the evidence. None of its legal theories provide it with a viable claim.

In examining the defendants' counterclaim I find many of the same problems. While

the defendants did not draft the contract I am still unable to adequately determine what

was required. There were changes made to the contract without proper documentation

though the extent of the changes is unclear. Some work was done well, some work was

done adequately, some work was done poorly and some work was left undone. It is not

possible to determine, however, what was contractually required and match it against

work done or not done. No damages can be awarded to the defendants.

It is correct that the home construction law's contractual requirements were not

met, 10 M.R.S.A. 51487, and that such a violation constitutes "...prima facie evidence of

a violation of the Unfair Trade Practices Act ...". 10 M.R.S.A. §1490(1). Whle

attorney's fees are available, 5 M.R.S.A. §213(2), it would not be proper to award them

here when no damages are otherwise awarded. See Dudley v. Wyler, 647 A.2d 90, 92

(Me. 1994). YORK COUNTY SUPERIOR COURT RE-04-0 1 1 The entries are:

Judgment for the defendants on the complaint. Judgment for the plaintiff on the counterclaim. No costs to any party.

Dated: August 9,2005

~&L.J? Paul A. Fritzsche " Justice, Superior Court

PLAINTIFF: P a t r i c k Bedard, Esq. PO Box 366 E l i o t Me 03903

DEFENDANTS : Gregory Orso, Esq. PO Box 545 York Me 03909